Was It Legal? Thoreau In Jail

When Constable Samuel Staples of Concord, Massachusetts, placed Henry David Thoreau under arrest for nonpayment of his state poll tax in late July of 1846, he had no idea that his act would bring about international repercussions a century later. On a less important but perhaps equally interesting level, neither of them evidently was aware that the arrest was extralegal—a fact that has just now come to light.

The story of Thoreau’s arrest is so well known that it needs only the briefest rehearsal. In 1843 Thoreau’s friend and neighbor Bronson Alcott, an active abolitionist, refused to pay his poll tax (a head tax, not a voting tax, that is still applicable in Massachusetts for male citizens between the ages of twenty-one and seventy) as a protest against the legality of slavery under our Constitution. Before Alcott could be incarcerated, his fine was paid by Samuel Hoar, the town’s leading citizen, who thought Alcott’s protest a blot on the town’s escutcheon. Despite the anticlimactic failure of Alcott’s protest, Thoreau was intrigued with the idea. He had long been looking for an effective, or at least a symbolic, method of expressing his own conscientious objections to slavery, and so he too began refusing to pay his poll tax.

It was three years before Staples got around to arresting Thoreau (more about that interesting point later). But one evening late in July, 1846, meeting Thoreau on an errand into town to the cobbler’s shop from his cabin at Waiden Pond, Staples asked him to pay his tax and, in fact, even offered to pay it for him if Thoreau was short of money. When Thoreau replied that he was not paying it out of principle, Staples arrested him and placed him in the local jail. Shortly after dark a veiled woman (probably Thoreau’s Aunt Maria, who though an abolitionist herself was scandalized by her nephew’s presence in jail) paid the tax. When the next morning Staples told Thoreau he was free to leave, Thoreau refused to go, arguing that he himself had not paid the tax and that he had the right to remain in jail. Staples finally had to put him out.

The story of the international repercussions a century later, too, are generally familiar. To explain his position to his fellow townsmen who could not understand his wish to be incarcerated, Thoreau delivered a lecture before the local lyceum, giving the rationalization for his seemingly bizarre behavior—that if only every citizen who abhorred slavery would join him in jail, the government, forced to choose between having its best citizens imprisoned and abandoning slavery, would, under the pressure of public opinion, take the latter course. Thoreau’s lecture, later published as “Civil Disobedience,” became the manual of arms for Mahatma Gandhi in his successful campaign to free India from the British Empire. Danish resisters used it in their fight against the Nazi invaders during World War II . Martin Luther King depended upon it in his battle against racial segregation in our own South. And anti-Vietnam protesters used it to force Lyndon Johnson to abandon plans for a second term of his Presidency and to force Richard Nixon to bring that war to an end.

But Sam Staples was acting illegally when he arrested Thoreau. The statutes of the Commonwealth of Massachusetts in effect at that time say very specifically in Chapter 8: Sect. 7 . If any person shall refuse or neglect to pay his [poll] tax, the collector shall levy the same by distress and sale of his goods, excepting the goods following, namely:

The tools or implements necessary for his trade or occupation; beasts of the plough necessary for the cultivation of his improved lands; military arms, utensils for house keeping necessary for upholding life, and bedding and apparel necessary for himself and family. Sect. 8 . The collector shall keep the goods distrained, at the expense of the owner, for the space of four days, at the least, and shall, within seven days after the seizure, sell the same by public auction, for the payment of the tax and the charges of keeping and of the sale, having given notice of such sale, by posting up a notification thereof, in some public place in the town, forty eight hours at least before the sale.

Now it is true that a following section does permit arrest under special circumstances: Sect. 11 . If the collector cannot find sufficient goods, upon which it may be levied, he may take the body of such person and commit him to prison, there to remain, until he shall pay the tax and charges of commitment and imprisonment, or shall be discharged by order of law.

But despite the fact that Thoreau was living his simple life in his $a8.iai cabin at Waiden Pond, he did have possessions not excluded by Section 7 that were worth far more than his overdue taxes. The poll tax in his day was a dollar fifty. Even with the accumulation of three years’ taxes and any conceivable late-payment charges the total could hardly have been more than five or six dollars. Yet Thoreau owned a collection of books that as early as 1840, according to his own catalogue, numbered more than a hundred and forty volumes. While perhaps he could have argued that some of these were, in the words of Section 7, “tools … necessary for his trade,” the great majority of them could hardly be placed in that classification. And surely Sam Staples could have raised far more than the necessary sum if he had auctioned them off. Thus his arrest of Thoreau was illegal.

In all probability, however, the question was not even raised. It seems likely that neither Staples nor Thoreau was aware of the law. Rural officers of those days—and often nowadays too— tended to consider themselves the law; they had no legal training. Staples’ own previous training was that of a barkeeper. He probably assumed that any violation of the law was to be answered by arrest. As for Thoreau, since he knew Alcott had been arrested for the same offense, he too probably assumed that incarceration was the legal punishment for nonpayment of taxes. Certainly for his own purposes arrest would have been preferable to a public auction of his books. Martyrdom of the protester is one of the essential elements of the theory of civil disobedience. The reasoning is that if a protester is willing to suffer martyrdom, he is much more likely to win a sympathetic ear from his fellow man for his cause. The loss of one’s books is hardly likely to be considered a very dramatic basis for a claim to martyrdom, whereas incarceration is. Thus had Sam Staples known his statutes of Massachusetts and abided by them, we might never have had an essay on “Civil Disobedience” or a guidebook for some of the great reformers of our century.

One other interesting question about Thoreau’s arrest can also be answered. It has often been wondered why it took Sam Staples three years to get around to arresting Thoreau. Staples was not only the constable for Concord, but also the tax collector (and, as a matter of fact, the jailer, too). The office of tax collector was neither an appointive nor an elective office; it was open to the lowest bidder. In 1842 Staples won the office with a bid of collection charges of one cent on the dollar, a rate he had raised to one and a half cents by 1845. In 1846 he resigned his office. According to the law he had to clear his books before he resigned his office or he would have been out-of-pocket any uncollected taxes. Thus his belated anxiety to collect Thoreau’s long-overdue tax. Of such trivialities are some of the great events of history made—a constable’s misunderstanding of his own job, a tax collector’s decision to resign his office.